Boilermakers Local 29 (Boston Chimney)

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 29, International Brotherhood of Boilermak- ers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, ,AFL-CIO and Boston Chimney & • Tower Co:, Inc. and Massachusetts Laborers' District Council and Local Union No. 7, Boston, Massachusetts of the International As- sociation. of Bridge, Structural and Ornamental Iron. Workers. Case, I-CD-698 6 December 1984 DECISION AND DETERMINATION OF. DISPUTE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER The charge in this Section 10(k) proceeding was 'filed 27 June 1983 -by the Employer, alleging that the Respondent, Boilermakers Local 29, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to em- ployees represented by Laborers. The hearing was held 10 August 1983 before Hearing Officer Benja- min, Smith. - : The National Labor RelatiOns Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Company, a Massachusetts corporation, is engaged in chimney erection and maintenance and annually performs contract work outside the Com- monwealth of Massachusetts valued in excess of $50,000. It also purchases and receives materials di- rectly from points outside the Commonwealth of Massachusetts valued in excess of $50,000 per year. The parties stipulate, and we find, that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Boiler- makers Local 29 and the Laborers are labor organi- zations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Ronald G. Plante, at the time of the hearing, was the president, owner, and general manager of Boston Chimney. On 1 June 1978 Boston Chimney and New England Laborers' District Council en- tered into a collective-bargaining agreement effec- tive from that date through 31 May 1981. Article XVIII of The' agreement provides that the contract will continue in effect on a yearly bäsis absent noti- fication by either party that it desires to change, modify, or terminate the agreement. As of the hearing in this matter, the collective-bargaining agreement was still , in existence. On 7 April 1977 the 'Company entered into , a contract with the Iron Workers, which contract was' also in existence as of the 'hearing herein. Boston Chimney has -never had a collective-bargaining agreement: with the Boilermakers. - On 7 January 1981 the Company entered -into a Oontract with CEA Combustion, Inc. (CEA) for -the design, fabrication, and erection of two chim- neys' at the Brockton Wastewater Treatment Fa- -cility in Brockton, Massachusetts. The Employer has traditionally used employees represented by the Laborers to perform this work. On 13-August 1981 Crouse:Combustion Systems, Inc. (Crouse) notified Boston Chimney ihat it had taken over the CEA -project and would assume CEA's -contractual- obli- gations. At 'all relevant. times,- Crouse and Boiler- makers -.Local 29 were parties to a 'collective-bar- gaining agreement. In December 1982 Plante received a telephone call from Boilermakers business agent William Carey inquiring about the Brockton job and who would be performing the work. When Plante ad- vised Carey he planned to use his "regular employ- ees" (i.e., laborers), Carey responded that there would be "possible trouble" if Boston Chimney did not assign the work to members of the Boilermak- ers. Plante informed Carey that he would call him prior to commencing the job. Later in December Plante contacted Carey, told him the anticipated starting date of the Brockton job, and offered to employ one of his certified welders on the project "in an attempt to maintain harmony." Carey reject- ed the offer. Shortly thereafter Plante again called Carey and offered to assign two of his members to the project but Carey responded that it was unac- ceptable and that his members would not be per- mitted to work side by side with laborers on that job. 2 Work on the Brockton project commenced on 3 January 1983 with only laborers being assigned work on the chimneys. 3 When the employees ar- One chimney was a prefabricated chimney consisting of a steel jacket with a refractory lining and the other was an emergency bypass chimney consisting of a single wall, stainless steel stack 2 Plante admitted that Carey stated he had no problem with Boston Chimney utilizing its employees in a supervisory capacity on the job 3 Prior to commencing work, Boston Chimney had requested two welders from the Iron Workers Union, but the welders failed to report to the jobsite As a result, members of the Laborers Union were used as welders 273 NLRB No. 18 BOILERMAKERS LOCAL 29 (BOSTON CHIMNEY) 111 rived at the jobsite, they discovered a Boilermakers picket line at the main entrance. Boston Chimney's attorney contacted the Boilermakers attorney and requested that the picket line be removed. The picketing ceased the following day. Boston Chim- ney completed the job on 24 February 1983. B. Work in Dispute The disputed work involves the onsite erection of two chimneys at the Brockton Wastewater Treatment Facility in Brockton, Massachusetts. C. Contentions of the Parties The Employer and the Laborers contend that the work in dispute should be assigned to employ- ees the Laborers' District Council represents, argu- ing that the Employer's preference, economy, safety and efficiency, and the Laborers contract with the Employer favor such an award. Further, they contend that the Employer's past practice sup- ports an award assigning the work to members of the Laborers. • - Boilermakers Local 29 argues that there is no genuine dispute as the work involved has been completed, that Plante testified generally as to the factors he considers in making work assignments rather than stating precisely what he relied on in making the work assignment to the Brockton project, that Plante did not follow his normal prac- tice in assigning employees to the subject job, and that the Employer and the Laborers have failed to support their claim that economy, safety, skill, or practice favor the award they seek. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that ,Section 8(b)(4)(D) has been violated and that the parties have not agreed on a method for the voluntary adjustment of the dis- pute. No party contends that there is an agreed-upon method for voluntary adjustment of the dispute to which all parties are bound. As stated above, Boilermakers Local 29 estab- lished and maintained a picket line at Boston Chim- ney's Brockton jobsite upon learning that the Em- ployer had assigned the disputed work to employ- ees represented by another union. We find that an object of Boilermakers' conduct was to force the Employer to assign the disputed work to employ- ees it represents. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. 4 Accordingly, we find that the dispute is properly before the Board for determina- tion. E.Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1 743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Collective-bargaining agreement The Employer, as stated above, is signatory to a collective-bargaining agreement with the Laborers. Article II of the contract recognizes the Laborers as the exclusive bargaining agent for all employees of the Employer performing such work as pointing, rebuilding, waterproofing, coating, sandblasting, painting, welding, rigging, demolition, erection of stacks, and installation of permanent platforms, lad- ders, safety climbing equipment, and concrete caps. Article I, section 1 of the agreement provides that the contract is in effect within the boundaries of the New England States and covers all field con- struction, demolition, plant-type construction, and other construction work, coming within the trade jurisdiction of the Union, resulting from decisions of „public and private tribunals, or resulting from trade or area practice. Finally, the contract re- quires that the Employer make all work assign- ments in accordance with the provisions of the agreement. The Employer does not have a contract with the Boilermakers. Accordingly, we find that the collective-bargain- ing agreement favors assignment of the work in dispute to employees represented by the Laborers. 2. Company preference and past practice Although Boilermakers Local 29 has claimed the disputed work, Plante testified that the Employer has utilized its employees (laborers) almost exclu- sively ("ninety-nine and nine-tenths of the time") to 4 We find no merit in the Respondent's claim that there is no longer a genuine dispute because the work involved is completed The dispute is not moot absent evidence that the dispute will not arise again if the Em- ployer later performs similar work in the Boilermakers' Jurisdiction Boil- ermakers Local 744 (Williams Crane Service), 232 NLRB 164 (1977) 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perform the work of erecting chimneys since the Employer entered into a collective-bargaining rela- tionship with the Laborers in 1978. Plante estimat- ed that the Employer erected approximately 125 chimneys in the 5-year period preceding the hear- ing in this matter.5 We find the history of the Employer's past prac- tice favors an award to employees the Laborers represent. 3. Relative skills Plante testified that the average number of years Boston Chimney's employees have worked for the Employer is in excess of 10—two particular em- ployees (of a total of about 5 to 10) have been with the Company for more than 25 years. Plante fur- ther testified that the firm never had a fatal acci- dent and has an unblemished safety record. Boston Chimney's employees are familiar with the scaf- folding used by the Company and the procedures and safety precautions which must be observed to perform the disputed work without accidents. The Boilermakers Union presented no evidence con- cerning the ability of employees represented by it to perform the disputed work. Accordingly, we find this factor favors assigning the disputed work to employees the Laborers represent. 4. Employer assignment and preference The Employer assigned the work in dispute to, and prefers that it be performed by, employees rep- resented by the Laborers. This factor favors an award to these employees. 5. Economy and efficiency of operations Although the Employer and the Laborers argue that it is more economical and efficient to have la- 5 Plante acknowledged that he utilized ironworkers on occasion over the years for performing welding work on steel permanent scaffolding and prefabricated refractory-lined chimneys As of the hearing, Boston Chimney employed at least one certified welder, a member of the Labor- ers Union borers perform erection work rather than boiler- makers, they failed to submit evidence establishing the manner in which utilizing laborers would result in more efficient operations. Therefore, this factor favors neither group of employees. Conclusions After considering all the relevant factors, we conclude that employees represented by the Labor- ers are entitled to perform the work in dispute. We reach this conclusion relying on the applicable col- lective-bargaining agreement, past practice, and the Employer's assignment and preference. In making this determination, we are awarding the work to employees represented by the Laborers, but not to that Union or its members. The current determina- tion is limited to the particular controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Boston Chimney & Tower Co., Inc. represented by Massachusetts Laborers' Dis- trict Council are entitled to perform the chimney erection work at the Brockton Wastewater Treat- ment Facility in Brockton, Massachusetts. 2. Local 29, International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force Boston Chimney & Tower Co., Inc. to assign the disputed work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 29, Interna- tional Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL- CIO shall notify the Regional Director for Region 1 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.